This cause came on to be heard on the record from the United States District Court for the District of Columbia and was argued by counsel before the court en banc. While the issues presented occasion no need for an opinion, they have been accorded full consideration by the court. See Local Rule 13(c).

5

This court is of the view that the complaint filed in this case was properly dismissed by the District Court, basically for the reason stated in its order filed October 27, 1977.

6

On consideration of the foregoing, it is ORDERED and ADJUDGED by this court that the judgment of the District Court appealed from in this cause is hereby affirmed.

7

MacKINNON, Circuit Judge (concurring).

8

In my opinion en banc rehearing was necessary to maintain the uniformity of our decisions.

9

In dissenting from the panel opinion in this case Judge Wilkey stated

10

this court quite logically has construed that language (of the D.C. statute of limitations) as mandating an inquiry into the "nature of the injury involved rather than to the legal theories available for its redress." (Emphasis added.)

11

Footnote 3 was cited in support of this assertion, as follows:

12

3 District of Columbia Armory Bd. v. Volkert, 402 F.2d 215, 220 (D.C.Cir.1968). In Volkert, plaintiff sued the supplier and architect firm responsible for the construction of the D.C. stadium after defects occurred in the stadium. Although the underlying theory of liability alleged was negligence, the purpose of the action was to recover damages for injury to the property. Thus the court held that the provision "for the recovery of damages for an injury to real or personal property," 12 D.C.Code § 301(3), stated the applicable limitation period.

13

The dissent takes the position that three potential claims have been suggested: First, infringement of appellant's rights under the First and Fifth Amendments. Second, breach of a due-care duty implicit in whatever federal statute or regulation purportedly authorized the activities of the appellees. Third, common law negligence in the maintenance of government files. Yet, the purpose of each of these claims is to recover damages for defamation. Therefore, the statute of limitations applicable to actions for defamation determines whether the suit was timely filed.

14

The en banc court's action affirms the district court's dismissal of the complaint, because the activities complained of therein occurred in excess of one year before the filing of the law suit and hence plaintiff's claim was barred by the District of Columbia one-year statute of limitations for libel. 12 D.C.Code § 301(4). (App. 60). The dissent argues that the issues presented are too unimportant for en banc consideration, and that the panel opinion therefore should be reinstated. Rehearing en banc, however, is proper to "secure or maintain uniformity of ... decisions." F.R.App.P. 35. And since the panel decision in this case was inconsistent with Volkert, it was proper to maintain the uniformity of our decisions by reversing the panel decision on rehearing en banc.

This case came before the court en banc after a divided panel1 reversed a District Court order2 dismissing as time-barred an action brought by appellant, the Church of Scientology of California, against four federal employees, the appellees herein.3 The Church sought money damages on the basis of allegations that appellees had participated some ten years earlier in the preparation and dissemination of a Department of Labor memorandum containing statements falsely accusing the Church of certain bizarre activities. Today, without opinion, the court exercises its en banc power to affirm the District Court, for no apparent reason other than disagreement with the panel's decision. Because I am persuaded that nothing in this case presents a question of exceptional importance and that the majority panel opinion portends no conflict with our past holdings, I would vacate the order granting the rehearing en banc as improvident and dissolve the en banc court. Accordingly, I respectfully dissent.

I. BACKGROUND

17

The factual backdrop of this litigation is supplied by the Church's complaint.4 The memorandum ultimately sparking the controversy was written by appellee Shirley Foley in November, 1967. It was a summary of an "investigation concerning the Church of Scientology ... made in order to form an opinion as to whether the body can be considered a bona fide religious organization for the purpose of alien employment certification."5 Foley reported that there was evidence that LSD and perhaps other drugs were widely used by assembled Church members; that an electric shock was administered to new members as a part of the Church's initiation ceremony; and that several persons in different parts of the United States had been shot, though not killed, because they had objected to the membership of their teen-aged children in the Church.6 The memorandum cited appellees June Norris and Charlotte Murphy as the sources of this information,7 and advised that they "urgently request(ed) that the Department of Labor withhold alien employment certification on any basis for the Church of Scientology."8

18

In February, 1968, the memorandum was forwarded to appellee John McGill,9 who in turn supplied a copy to a branch office of the Immigration and Naturalization Service.10 That, the Church asserts, led to initiation of visa-revocation proceedings against an alien Scientologist minister,11 and to a long-term pattern of unremitting discrimination and harassment by governmental officials and agencies acting on the strength of the memorandum.12

19

The Church instituted the instant litigation in March, 1977.13 In its complaint, it charged that the forerunning events infringed its First Amendment right to freely exercise religious beliefs and its Fifth Amendment right to due process of law.14 The complaint averred that the memorandum incorporated information that appellees knew or reasonably should have known was false;15 that the memorandum was maintained in the files of the Department of Labor despite the risk that the information would be disseminated to the detriment of the Church;16 and that the harm feared actually came to pass.17

20

In response to the complaint, appellees moved for dismissal on the ground that the suit was precluded by the District of Columbia statute limiting the time period for commencement of defamation actions to one year.18 Appellees also requested a protective order barring discovery pending disposition of the motion.19 The District Court subsequently issued the protective order.20 When the Church thereafter filed an amended complaint which, save for minor alterations, was identical to the original,21 the court granted appellees' renewed motion to dismiss, concluding that the cause of action sounded only in defamation and thus was barred by the one-year statutory limitation.22

21

On appeal, the panel upheld the dismissal to the extent that the claim was one for defamation.23 On the ground that the complaint might have stated some additional and different cause of action under either the Constitution or some unspecified federal statute or regulation, however, a majority of the panel reversed and remanded for further consideration.24 The full court then agreed to rehear the case en banc, and now affirms the District Court's dismissal order.

22

II. RULE 35 AND THE PREEMINENCE OF THE THREE-JUDGE COURT

23

The full panoply of powers conferred upon the federal courts of appeals are statutorily vested in three-judge panels.25 A court of appeals may sit en banc only in the narrowly-defined circumstances specified by Rule 35 of the Federal Rules of Appellate Procedure, which declares thata hearing or rehearing (en banc ) is not favored and ordinarily will not be ordered except (1) when consideration by the full court is necessary to secure or maintain uniformity of its decisions, or (2) when the proceeding involves a question of exceptional importance.26

24

Rule 35 governs all en banc hearings and rehearings. To be sure, its criteria are not entirely free from ambiguity, but an examination of the statutory and judicial developments culminating in promulgation of the rule, and of the more recent decisions construing its mandate, makes clear that courts of appeals are to function principally through divisions of three judges. Exceptions are appropriate only in rare instances, and, as we shall see, the instant case is not one of them.

A. The Development of En Banc Review

25

From the moment the federal courts of appeals were created in 1891,27 the primary decisionmaking unit was statutorily limited to the three-judge panel.28 Indeed, while the appointment of a fourth appellate judge to three circuits in 191129 stirred debate30 over whether the courts of appeals could ever function as a whole rather than by three-judge divisions, it was not until 1940 almost half a century after federal appeals courts came into existence that the Supreme Court sanctioned use of the en banc tribunal.31

26

In that year, the Third and the Ninth Circuits disagreed over the propriety of holding hearings before a court's full membership.32 The Ninth Circuit held that "no more than three judges (could) sit in the Circuit Court of Appeals."33 The Third Circuit, on the other hand, ruled that en banc sittings were permissible in "exceptional cases ... (w)here ... there is a difference in view among the judges upon a question of fundamental importance."34 The Supreme Court resolved the conflict by affirming the Third Circuit's understanding,35 thus approving for the first time the use of the en banc proceeding. The Court, however, agreed that an en banc sitting was not to be the norm; rather, it was a special technique designed to eliminate "(c)onflicts within a circuit"36 and to promote "more effective judicial administration."37

27

Congress, in turn, confirmed the Court's interpretation of earlier legislation by the enactment in 1948 of 28 U.S.C. § 46(c).38 Again, the leading role of the three-judge panel was emphasized:

28

Cases and controversies shall be heard and determined by a court or division of not more than three judges unless a hearing or rehearing before the court en banc is ordered by a majority of the circuit judges of the circuit who are in active service.39

29

As the statutory language suggested, this section was intended to "continue ( ) the tradition of a three-judge appellate court and make( ) the decision of a division, the decision of the court, unless rehearing in banc is ordered."40 Above all, as the Supreme Court was soon thereafter to observe, Congress was concerned with "preserving the 'tradition' of the three-judge courts against further inroads."41

30

Some years later, the Court put to rest any lingering doubts about the paramount importance of the three-judge court and the concomitant limitations on resort to en banc decisionmaking. The Court admonished:

31

En banc courts are the exception, not the rule. They are convened only when extraordinary circumstances exist that call for authoritative consideration and decision by those charged with the administration and development of the law of the circuit.42

B. Interpretations of Rule 35

32

The original view of limited use of the en banc court of appeals has frequently been mirrored in judicial opinions issued since promulgation of Rule 35. There is now general agreement among the circuits that the "truly extraordinary"43 cases meriting en banc treatment are those involving "issue(s) likely to affect many other cases"44 in other words, those of real significance to the legal process as well as to the litigants.45 Contrary to the view one must perforce infer from the court's decision today, the en banc court is not an institution for monitoring panel decisionmaking; it flies in the face of both the intent of Congress and Supreme Court precedent to use the Rule 35 procedure " 'merely' to correct individual injustices or mistakes."46 And while Rule 35 looks to preserving the uniformity of a circuit's decisions, the courts agree that the availability of en banc rehearings to cure intra-circuit conflicts does not justify "a vote for reconsideration by the entire court merely because (a judge) disagrees with the result reached by the panel."47

33

The need for judicial restraint in invoking the en banc mechanism is readily understood. Because it engages the attention of every active judge, consideration of a case en banc drains judicial resources while burdening the litigants with added expense and delay.48 And because it often leads to a multiplicity of opinions, a too-frequent corollary of en banc decisionmaking is the inability to offer authoritative guidance,49 the raison d'etre of the procedure. In this light, it is hardly surprising that Rule 35 explicitly declares that en banc "hearing or rehearing is not favored."50 On the contrary, the collective wisdom of the federal judiciary is that en banc review must be soundly justified, else the game will not be worth the candle.

34

In sum, the history of the en banc practice, the plain language of Rule 35, and consistent judicial interpretation of the purposes and permissible uses of en banc courts are in complete accord: barring extraordinary circumstances, only three-judge panels may appropriately hear and decide cases coming before the courts of appeals.

III. THE PRESENT CASE

35

The District Court dismissed the Church's action solely on the ground that it was barred by the District of Columbia statute of limitations applicable to actions for libel or slander.51 In the court's view, the Church's complaint "sound(ed) most nearly in defamation," and was intercepted by the local one-year limitation on actions therefor.52 The dispute on appeal is whether the Church had a legitimate claim other than for defamation, and thus is able to benefit from the statute's residual provision of three years for actions "for which a limitation is not otherwise specifically prescribed."53

A. The Possible Claims

36

Three potential claims have been suggested: infringement of rights secured to the Church by the First and Fifth Amendments; breach of a due-care duty implicit in whatever federal statute or regulation purportedly authorized the activities in which appellees engaged; and common law negligence in the formation of governmental files. If any one of these claims is valid, the three-year limitation period may be legally viable.54 The issue, then, is whether the Church could have supported a claim for relief under one or more of these theories.55 I see no reason whatsoever for summoning this court's en banc authority to conduct that inquiry.

37

Certainly no question justifying an en banc decision is posed by the Church's constitutional claims.56 It is well settled that a cause of action for money damages may be implied directly from either the First or the Fifth Amendment.57 The issue here is not of significant import; it is simply whether proof of the events the Church complains of would establish official misconduct rising to the level of constitutional transgression.58 That question is largely factual, and the answer could have little if any impact on proceedings other than those at hand.59 Consequently, the constitutional issues do not merit use of the special decisionmaking power of the full court.

38

The further question whether appellees have disregarded a statutorily-imposed obligation to exercise reasonable care involves very similar considerations. This court at least twice previously has held that such a duty, and a concomitant remedy for its breach, may follow from imposition of a statutory responsibility to manage governmental records,60 and the panel majority felt that perhaps the Church could show that such a duty existed in this case.61 The panel decision forged no novel doctrine, nor did it conflict with our precedents. I fail to see how the panel's remand for exploration of this avenue to possible relief warrants en banc review.

39

Nor, in my view, does the Church's common law theory of liability deserve en banc treatment. The Church suggests that there was a nonfederal duty, grounded in District of Columbia law, to use due care in assembling and maintaining federal records.62 But we no longer have either the responsibility or the prerogative to fashion the common law of the District of Columbia,63 or to act en banc to maintain its uniformity. Indeed, our obligation as a federal court dealing with a nonfederal claim is to take nonfederal law just as it is.64 Against this background, I cannot conceive of anything less appropriate for en banc consideration than a matter of purely local law.65

B. A Proposed Disposition

40

While it seems clear that this case presents no issue worthy of en banc review, the question of how properly to dispose of it remains. Usually, of course, courts do not face that need because they simply refused to accord inappropriate cases an en banc audience. Occasionally, however, courts have discovered, after convening en banc, viewing briefs and hearing oral argument, that a given case does not warrant consideration by every active judge. In just such a situation the Seventh Circuit withdrew its order granting a rehearing, dissolved the en banc court and reinstated the panel opinion.66 And this court, when confronted by a similar problem, concluded that because of the limited importance of the case it was inappropriate to provide detailed "exposition en banc of the legal points beyond that already provided in the majority and minority opinions of the panel,"67 and accordingly reissued the panel opinions.68 An obvious parallel is the Supreme Court's practice of dismissing writs of certiorari when, after closer study of the case, it becomes evident that the writ was granted on a mistaken impression of the record;69 that the case is an unsuitable one in which to issue an authoritative decision;70 or that the case is simply too unimportant to merit the Court's attention.71

41

Similar action, I believe, is demanded here. Basic rules of judicial housekeeping admonish courts to avoid addressing issues they need not resolve. Since reaching the merits here can serve none of the accepted purposes of the en banc process, there is no occasion for a full-court decision of the case. On the contrary, the court would do well to conserve its resources and preserve the authority of its en banc voice by reserving both for those fundamentally important cases where the collective attention and wisdom of its full bench is both necessary and appropriate.

42

In my view, no issue meriting en banc attention has been tendered by the parties or uncovered by the court. Rehearing en banc, I think, was improvidently granted. I would therefore dissolve this en banc tribunal and reinstate the panel opinions.

The four employees are Shirley Foley, John T. McGill, Charlotte Murphy and June Norris. At all times relevant to this appeal, Foley was an employee of the Department of Labor, McGill was an officer of the Department of State, and Murphy and Norris were attorneys at the Internal Revenue Service. All four sought the dismissal on the ground that the action was barred by the District of Columbia statute of limitations applicable to defamation actions, D.C.Code § 12-301(4) (1973). They did not then claim official immunity from suit, but in their dismissal motion they made known their intention to address that subject if the motion was denied. App. 14. Because the motion was successful, an immunity defense never emerged

In consequence of the issuance of a protective order deferring discovery and the dismissal of the Church's action shortly thereafter, the facts of the case were never fully developed. But it is well settled that on a motion to dismiss for failure to state a claim upon which relief can be granted, the complaint must be indulged the construction most favorable to the plaintiff and its allegations must be taken as true. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90, 96-97 (1974); California Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508, 515, 92 S.Ct. 609, 614, 30 L.Ed.2d 642, 649 (1972); Jenkins v. McKeithen, 395 U.S. 411, 421-422, 89 S.Ct. 1843, 1849, 23 L.Ed.2d 404, 416-417 (1969)

Supp.App. 1. During the course of the investigation Foley had conferred with Norris and Murphy, who apparently based their statements upon prior Internal Revenue Service investigations of the Church. Supp.App. 1

Complaint, PP 17-18, App. 6-7. In 1975, the Department of Labor officially acknowledged that the information incorporated into the memorandum "was irrelevant, unverified and based on hearsay," and slated the memorandum for destruction. Supp.App. 3

The Church asserted that it had no knowledge of the existence of the memorandum prior to the conclusion of a contested Freedom of Information Act proceeding in April, 1975. Complaint, P 19, App. 7. While stating that it was long aware that it was the object of governmental discrimination and harassment, the Church says it previously was unable to identify the individuals responsible therefor. Complaint, P 19, App. 7

Complaint, PP 11, 13-15, 17-18, App. 4, 5-7. In addition to the alleged invasions of the constitutional and common law rights themselves, the Church averred that its reputation was damaged; that it was hindered in its ability to enlist parishioners and financial contributions; that it became the continuous object of arbitrary discrimination and harassment by various governmental agencies and personnel; and that it was required to pay large sums of money for legal and related expenses in endeavors to regain its rights. Complaint, PP 18, 20, App. 7, 8

Act of March 3, 1891, ch. 517, § 2, 26 Stat. 826 (1891). The courts of appeal should not be confused with the original circuit courts, which also initially made use of a three-judge panel. A detailed account of the evolution of the federal courts may be found in C. Wright, A. Miller, & E. Cooper, Federal Practice §§ 3503-3504 (1975 ed.). For present purposes, however, a brief history of the precursors of the modern courts of appeals will suffice

The circuit courts were created by the Judiciary Act of 1789, ch. 20, § 4, 1 Stat. 73. This legislation in which Congress for the first time exercised the power granted it under Art. III, § 1, of the Constitution to establish the lower federal courts provided for thirteen district and three circuit courts. The latter had both original and appellate jurisdiction. There were, however, no circuit judges as such; the circuit courts were conducted by panels consisting of two Supreme Court justices "riding circuit" and the judge of the district in which a given session was convened. Judiciary Act of 1789, ch. 20, § 4, 1 Stat. 73. The regular panel was reduced to one Supreme Court justice and one district judge in 1793. Act of March 2, 1793, ch. 22, § 1, 1 Stat. 333. It was not until 1869 that Congress established circuit judgeships; by the Act of April 10, 1869, ch. 22, § 2, 16 Stat. 44, one judge was assigned to each circuit.

The origin of the current system can be traced to the creation of federal-question jurisdiction in 1875. Act of March 3, 1875, ch. 137, 18 Stat. 470. The resultant increase in caseloads necessitated restructuring of the judiciary and concomitant creation of the courts of appeals. See C. Wright, A. Miller, & E. Cooper, supra, § 3504 at 11; Bickel, The Caseload of the Supreme Court at 3 (1973); Hart & Wechsler, The Federal Courts and the Federal System, at 40-41 (Bator, Mishkin, Shapiro & Wechsler ed. 1973). Although the original circuit courts survived the 1891 legislation that act terminated their appellate jurisdiction, Act of March 3, 1891, ch. 517, § 4, 26 Stat. 826 (1891); they were abolished in 1911, and their original jurisdiction was transferred to the district courts. Act of March 3, 1911, ch. 231, 36 Stat. 1087.

If § 117 (of the Judicial Code) were to be ready (sic ) literally, the circuit court of appeals was to "consist" of only three judges in spite of the fact that Congress had already provided in some circuits for more than three circuit judges. Clearly, where there were four, all could not be members of a court of three. Yet there was plainly inferable a Congressional purpose to constitute in some circuits a circuit court of appeals of four judges.

As of 1938, all but two of the circuit courts of appeals had more than three judges. Comment, In Banc Procedures in the United States Courts of Appeals, 43 Ford.L.Rev. 401, 402 (1974); Note, En Banc Hearings in the Federal Courts of Appeals: Accommodating Institutional Responsibilities, 40 N.Y.U.L.Rev. 563, 570 (1965)

Western Pac. R. R. Corp. v. Western Pac. R. R. Co., supra note 40, 345 U.S. at 256, 73 S.Ct. at 661, 97 L.Ed. at 994. In Western Pacific, litigants sought to establish a statutory right to compel each member of a court of appeals to give formal consideration to an application for rehearing en banc. The Supreme Court held that the courts of appeals need not adopt any particular procedure, but must allow parties to suggest rehearings en banc to the judges authorized to initiate such proceedings. See id. at 249-250, 268, 73 S.Ct. at 657-658, 666, 97 L.Ed. at 990, 999. In reaching this conclusion, the Court declared that it was desirable to allow the judges " 'to provide for a court of more than three judges when in their opinion unusual circumstances make such action advisable.' " Id. at 251, 73 S.Ct. at 658, 97 L.Ed. at 991, quoting Annual Report of Attorney General (1938) at 231 (footnote omitted) (emphasis supplied)

Church of Scientology v. Foley, supra note 2, App. 60. In relevant part, the District of Columbia statute of limitations provides:

Except as otherwise specifically provided by law, actions for the following purposes may not be brought after the expiration of the period specified below from the time the right to maintain the action accrues: ...

(4) for libel (or) slander, ... 1 year; ...

(8) for which a limitation is not otherwise specially prescribed 3 years ....

That question crept into the case when the Church invoked diversity of citizenship as one of the District Court's jurisdictional bases. See note 14 supra. I recognize that the federal common law might also provide a cause of action in this case, see generally Wheeldin v. Wheeler, 373 U.S. 647, 83 S.Ct. 1441, 10 L.Ed.2d 605 (1965); United States v. Standard Oil Co., 332 U.S. 301, 67 S.Ct. 1604, 91 L.Ed. 2067 (1947); Clearfield Trust Co. v. United States, 318 U.S. 363, 63 S.Ct. 573, 87 L.Ed. 838 (1945), but the issue is raised neither by the parties nor in the panel opinion, and it therefore need not be addressed on this appeal

Appellees have implied that the panel decision conflicts with District of Columbia Armory Bd. v. Volkert, 131 U.S.App.D.C. 74, 402 F.2d 215 (1968). See Supplemental Brief for Appellees at 13-18. Close comparison satisfies me that there is no inconsistency between the two. Volkert held that a suit claiming property damage was governed by the District's three-year limitation on actions "for the recovery of damages for an injury to real or personal property," D.C.Code § 12-301(3) (1973), despite an assertion of alternative contract and tort theories of liability. "Where," the court said, "real or personal property is injured and suits are brought to recover damages, we think Congress has said quite clearly that 3 years is the limitation period, whether contract (sealed or unsealed, written or oral) or tort be made the legal vehicle of recovery." 131 U.S.App.D.C. at 79, 402 F.2d at 220. Here, however, the one-year limitation affects the Church only to the extent that recovery is sought for "libel" or "slander." D.C.Code § 12-301(4) (1973), quoted in relevant part supra note 52. The Church alleges that the Foley memorandum not only curtailed its ability to attract adherents and contributions, but also precipitated governmental discrimination and harassment frustrating exercise of its First and Fifth Amendment rights and necessitating large financial expenditures to preserve them. Complaint, PP 18-20, App. 7-8; Amended Complaint, PP 18, 20, App. 35-36. These constitutional claims are not congruent with libel or slander, nor is the panel decision in doctrinal collision with Volkert